Prior to the Act No 5 of 2003, trials before the High Court were subject to committal proceedings, which took place before a magistrate who then committed the accused for trial before the High court if they were of the view that the evidence contained in the committal bundles warranted it.
Key to these proceedings wee the committal bundles which essentially contained all the evidence, including statements that the prosecution had against an accused person for trial before the High Court. even though Act No. 5 has done away with these proceeding, but is noteworthy that the High Court still requires the bundles before a trial can proceed before it.
In the absence of the proceedings accused persons whose cases are exclusively triable by the High Court to go straight to the court for plea taking in the same manner as in the subordinate courts.
Because all cases exclusively triable by the High court are not bailable the high court does not entertain applications for pre-trial bail. A major distinction of high court criminal … the trials are conducted together with the aid of assessors,
Section 262 on Assessors – makes it mandatory for trials in the high court to be aided by 3 assessors. Assessors were incorporated by the colonial system in Kenya to enable the largely white judiciary understand the local customs and culture of the various tribes in Kenya initially assessors were mandatory for both civil and criminal cases where the parties were natives.
Dhalamini v King 1942 AC 583 Lord Atkin articulated the duties of an assessor “ the duty of an assessor is not simply to aid, it operates and is no doubt intended to operate as a safeguard to natives accused of a crime and a guarantee to the native population that their own customs and habits are not misunderstood.
Selection of assessors is covered under Section 265 of CPC provides that all persons aged between 21-60 are eligible to serve as assessors; the following are excluded;
1. The President members of he cabinet
2. the speaker and members of the national assembly
3. the clerk and official reporters of the national assembly
4. persons actively practicing as priests or ministers of their respective religions
5. medical dental and legal practitioners in active practice – these does not include nurses, clinical officers etc
6. Officers of the armed forces, members of the police force, members of prisons services members of staff or schools probation officers
7. Permanent Secretaries MD Kenya railways telkom Kenya
8. judicial officers staff of the attorney generals chambers
9. mayors chairmen of councils, town clerks
10. persons disable by mental or bodily infirmity
11. any other persons exempted by the Attorney General
section 269 of the CPC at least 7 days before trial the Registrar of the high court may send a letter to a magistrate holding jurisdiction of 1st class where the trial is to be held – requesting that he summons as many persons as seem to the trial judge to be required for the schedule trials to serve as assessors.
The summons must be in writing and must specify time and place of attendance. Thereafter the trial judge will select which of those summoned he will use in specific trials.
Whereas there is no provision in the CPC, the practice is that an objection too an assessor can be raised by a particular assessor may be raised.
Ndirangu v R 1959 EA875 – the appellant in his murder trial chose to remain mute throughout. On appeal against his conviction argued that the wife of one of the assessors at his trial was the sister of the deceased wife and he complained that this had therefore prejudiced him holding that such an objection on good grounds is clearly good practice, the court went on to state that if injustice would be occasioned by such an assessor sitting with the judge then he should be dismissed.
Andiazi v R 1967 EA 813 – THE COURT STATED THAT WHERE AN OBJECTION IS RASIED THE TRIAL JUDGE SHOULD INQUIRE INTO IT IN A KIND OF TRIAL WITHIN TRIAL AND DEPENDING ON WHERE IT IS FOUNDED OR NOT.
It would appear that to obviate any objection that an inquiry should disclose it before trial made as to whether or not there are objections – it may also be best for a provision or practice that assessors who know of any conflict should disclose it before trial.
There is no limitation as to the number of times that one may serve as an assessor
As a result of lack clear provision the practice has been that a list of assessors is kept by the various high court registries, invariably these have tended to be persons in public service. And contrary to assessors being common persons, some have become professional by virtue of being called upon consistently to serve p this is certainly not a good practice and ought to be discouraged.
The judge has total discretion which must be exercised judiciously in whom he chooses as assessors see W Y Wilken 1965 EA 286 – IF YOU ARE ASIAN SHOULD THE ASSESSORS BE ALL ASIAN.. the court held that there was no need for racial balance whereas it would be important to have the semblance of the accused person identified.
The actual nature and extent of function of the assessors in criminal trial sis not full defined by statute Gusambizi Wesonga 1948 EACA 65 – the court noted that in the exercise of any functions of assessors the court is always to apply the test of what is fair to an accused person, keeping in mind and considering the principles of natural justice.
The High Court trial session to start, it must start with the 3 assessors, insignificant absence by one of them cannot nullify the trial – Assah v R  4 EACA 41
Section 322 of the CPC makes provision that at the end of the trial the judge may sum up the evidence of both the prosecution and the defence to the assessors – the practice has been that the judges sum up to the assessors. In the case of Kalinga v R 1958 EA 684 – it was held as follows “the opinion of the assessors can be of great value and assistance to a trial judge but only if they fully understand the facts of the ase before them in relation to the relevant law. if the law is not explained an attention not drawn to the salient facts of the case, the value of the assessors opinions is correspondingly reduced.
Section 322 also provides that the assessors after the law has summarised the judge is to call upon them individually to give their opinions individually and orally, which shall be recorded by the judge. In practice they give reasons for their opinions; as early as 1943 in the case of Pauolo Lwevola v R 10 EACA 63, the court stated that such reasons become even more relevant in the event of an appeal.
There is no provision for consultation with each other Abdalla Omer v R 1958 EA 725 and R v Mungu Atosha  5 EACA both cases established that it is neither illegal nor irregular for the which should then be recorded or to retire to consult but on coming back they should give their individual opinions…
Section 322(1) CPC provides that the opinion of assessors if not binding on the judge. After the assessors have given their opinion the judge delivers judgment.
Where the judge comes to a finding on the facts which is contrary to opinion unanimously shared by the assessors, it is good practice for him..
It has been argued that there is need to change the law, to clearly define the role of assessors.
The law should be changed to conform to the idea of an assessor being a common man, by limiting the number of times one may serve. There is need to examine the value of the assessors opinion vis-à-vis the judge’s own. What value they add to the process has been questioned, the judge can go contrary to their opinions. Some Judges argue that they find assessors useful and it is usually good when assessors make the same finding as the judge, this gives comfort to the judge that he is right. there is no provision requiring the judge to state their reasons for not taking the opinion of the assessors.
Where the high court reaches a verdict of conviction they will follow the same procedures in determining sentence as the subordinate courts, notwithstanding the fact that in most cases, they can only award the mandatory sentence.